Judge Gail Killefer, Case Number: 20STCV07237, Date: 2023-07-20 Tentative Ruling

TENTATIVE: On the court’s own motion, Plaintiff’s First Amended Complaint is

Stricken. Plaintiff is granted thirty (30) days leave to amend the Complaint. The court sets an OSC re Amended Complaint for August 31, 2023, at 8:30 a.m.

Background

Danielle Ntolo (“Plaintiff”) resides at 825 S Hill Street #2806, Los Angeles, CA 90014 (the “Premises”) where Onni South Hill LP (“Defendant”) was the landlord. Plaintiff filed the operative complaint on April 4, 2023, alleging five causes of action:

Defendant filed a Demurrer to Plaintiff’s complaint on June 1, 2023. Plaintiff did not oppose the demurrer but, instead, filed a First Amended Complaint (“FAC”) on June 30, 2023. At the hearing on July 6, 2023, hearing on the demurrer, the court invited Defendant’s counsel to file a supplemental brief as to whether the FAC was timely filed. Defendant filed a Supplemental Brief on July 17, 2023.

Request for Judicial Notice

The Court may take judicial notice of records of any court of record of the United States. (Evid. Code, § 452(d)(2).) However, the court may only judicially notice the existence of the record, not that its contents are the truth. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.)

1) The unlawful detainer complaint filed on September 16, 2021 for the case titled Onni South Hill, LP v. Danielle Ntolo Case No. 21STUD02332 (“UD 1”); attached as Exhibit A.

2) The Minute Order dated January 31, 2022 for UD 1, denying the motion to quash; attached as Exhibit B.

3) The Request for Dismissal filed and entered on February 2, 2022 for UD 1; attached as Exhibit C.

4) The unlawful detainer complaint filed on July 27, 2022 in Los Angeles Superior Court in the case titled Onni South Hill, LP v. Danielle Ntolo identified by Case No. 22STUD04083 (“UD 2”); attached as Exhibit D.

5) The Minute Order dated September 1, 2022 denying the motion to quash in UD 2; attached as Exhibit E.

6) The Minute Order dated September 28, 2022 denying the motion for reconsideration on the motion to quash in UD 2; attached as Exhibit F.

7) The demurrer filed by Danielle Ntolo on November 16, 2022 in UD 2; attached as Exhibit G.

8) The Minute Order dated January 4, 2023 overruling Danielle Ntolo’s demurrer in UD 2; attached as Exhibit H.

9) The Request for Entry of Default filed and entered against Danielle Ntolo on January 23, 2023 in UD 2; attached as Exhibit I.

10) The Answer filed by Danielle Ntolo on January 23, 2023 in UD 2; attached as Exhibit J.

11) The Application of Attorney to Vacate Default and Default Judgment filed on February 14, 2023 in UD 2; attached as Exhibit K.

12) The Minute Order dated May 30, 2023 vacating the default entered against Danielle Ntolo in UD 2; attached as Exhibit L.

DEMURRER[1]

I. Legal Standard

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)

II. Plaintiff’s Untimely Filing of a First Amended Complaint

The court finds the FAC was untimely filed and, on the court’s own motion, strikes the FAC. (See Code Civ. Proc., § 436.) Code of Civil Procedure section 472(a) allows a pleading to be amended once without leave of court either “before the answer, demurrer, or motion to strike is filed”, or else “after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike.” (Code Civ. Proc., § 472, subd. (a).)

Here, Defendant filed a demurrer on June 1, 2023, and noticed the demurrer for hearing on July 6, 2023. Pursuant to CCP § 1005(b), Plaintiff had “nine court days” – to July 22, 2023 -- to file an opposition to the demurrer or a FAC. As Plaintiff did not file the FAC until June 30, 2023, the FAC was untimely filed.

Since Plaintiff failed to comply with the requirements of CCP § 472, the court strikes the FAC as an improper pleading filed without the court’s leave to amend. (CCP § 436.) Moreover, Plaintiff failed to serve the FAC on Defendant’s current counsel. Although the FAC is stricken, the court will proceed to address Defendant’s demurrer on the merits to give Plaintiff guidance in preparing a Second Amended Complaint (“SAC”) if she chooses to proceed with this case.

This action stems from a dispute over the lease, where Plaintiff informed Defendant that because of the regulations surrounding the COVID-19 Pandemic that began in March of 2020, Plaintiff was unable to pay rent under the lease. (Compl. ¶ 3.) Plaintiff alleges that Defendant charged illegal late fees and returned check charges. (Complaint, ¶ 8.) Plaintiff argues that although the lease ended on its terms on September 24, 2020, Defendant re-terminated the rental agreement on August 31, 2021, began an unlawful detainer action on September 16, 2021 (Onni South Hill, LP v. Danielle Ntolo Case No. 21STUD02332, hereinafter “UD 1”), and began a second

unlawful detainer action on July 27, 2022 (Onni South Hill, LP v. Danielle Ntolo identified by Case No. 22STUD04083 hereinafter, “UD 2”). (Compl. ¶ 11.)

Defendant represents it initiated UD 1 for Plaintiff’s failure to pay August 2021 rent. (RJN Ex. A.) On February 04, 2022, Defendant dismissed UD 1 without prejudice. (RJN Ex. C.)

On July 27, 2022, Defendant filed UD due to Plaintiff’s failure to pay rent from April 2022 through June 2022. (RJN Ex. D.) Defendant asserts that Plaintiff’s demurrer to the complaint in UD 2 raises identical claims as the one at issue here. (RJN Ex. G.) “Specifically, Plaintiff’s demurrer in UD 2 alleged there is no agreement between the parties (Complaint, ¶10), UD 2 is barred by the Los Angeles City Moratorium (Complaint, ¶¶4, 22-25), and UD 2 is barred by the Los Angeles County Moratorium (Complaint, ¶¶5, 26-29).” (Mot. at 2:22-25.) On January 4, 2023, the UD 2 court overruled the demurrer. (RJN J.)

Defendant argues that Plaintiff’s complaint was filed in retaliation for its prosecution of UD 1 and UD 2 and is barred by the litigation privilege. In addition, Defendant asserts that Plaintiff’s causes of action fail to state sufficient facts to constitute a cause of action.

A. The Litigation Privilege Applies Barring Plaintiff’s Complaint

Defendant’s first argument is that the litigation privilege bars the entire complaint. (Civ. Code, § 47(b).) Because this argument is dispositive as to the entire demurrer, the court will address it first.

Civil Code § 47(b) provides an absolute privilege for communications made in any legislative proceeding, in any judicial proceeding, in any other official proceeding authorized by law, or in the initiation or course of any other proceeding authorized by law.¿ (See Civ. Code, § 47(b); Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 350, 360.)¿ Section 47(b) bars all tort causes of action except malicious prosecution.¿ (See Hagberg, 32 Cal.4th at 360.)¿

Section 47(b) only applies to communicative acts, not tortious conduct.¿ (Id. at 423.)¿ A four-part test determines whether a statement is within the litigation privilege. “To be privileged a statement must (1) be made in a judicial proceeding, (2) by litigants or other authorized participants, (3) aim to achieve the litigation's objects, and (4) have some logical connection or relation to the proceeding. [Citation.]” (Silk v. Feldman (2012) 208 Cal.App.4th 547, 555.)

Documents or communications that meet all the elements outlined in section 47(b) are granted absolute privilege and “the absolute privilege is interpreted broadly to apply ‘to any communication, not just a publication, having ‘some relation’ to a judicial [or quasi-judicial] proceeding,’ irrespective of the communication's maliciousness or untruthfulness. (People ex rel. Gallegos v. Pacific Lumber Co. (2008) 158 Cal.App.4^th 950, 958.) Additionally, “judicial or quasi-judicial” proceedings are defined broadly to include ‘all kinds of truth-seeking proceedings,’ including administrative, legislative and other official proceedings. [Citation] Further, the privilege “is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.” (Id.) The purpose of the litigation privilege is to afford litigants and witnesses the utmost freedom to access the courts without fear of being harassed by subsequent lawsuits. (Id.)

Here, Plaintiff’s entire complaint is based on the two prior unlawful detainer cases that Defendant brought against Plaintiff. The first cause of action requests declaratory relief over the lease that is at issue in UD 2. The second cause of action is for restitution for the late fees and check fees paid to Defendant during tenancy, which stems from the unlawful detainer cases. The third and fourth causes of action are alleged violations of the city and county moratoriums when Defendant attempted to bring UD 1, which was dismissed, and UD 2, which is pending. The final cause of action alleges retaliation for opposing both unlawful detainer actions brought earlier by Defendant. Each of these causes of action is based on publications made during prior judicial proceedings, made by the litigants, with the aim of winning their case. As none of these causes of action would exist without the prior litigation initiated by Defendant, the absolute privilege applies, and each cause of action alleged in the complaint is barred.

The court now addresses whether Defendant’s demurrer on the basis that Plaintiff’s causes of action are insufficiently pled.

“To qualify for declaratory relief, a party would have to demonstrate its action presented two essential elements: (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the party’s rights or obligations.” (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909, quotation marks and brackets omitted.)

Plaintiff requests that this Court provide declaratory relief on whether the lease was terminated on September 24, 2020, and whether Plaintiff is liable for any portion of the rent between March 1 and September 24, 2020. Setting aside the litigation privilege, this cause of action fails for two reasons: (1) there is no actual controversy involving the lease, and (2) if any controversy does exist, it is to be resolved in the pending proceeding of UD 2 where the validity of the lease had already been raised.

The court notes that CCP § 1945 governs a situation where a tenant stays over, past the expiration terms of their lease. “If a lessee of real property remains in possession thereof after the expiration of the hiring, and the lessor accepts rent from him, the parties are presumed to have renewed the hiring on the same terms and for the same time, not exceeding one month when the rent is payable monthly, nor in any case one year.” (Code Civ. Proc., § 1945.)

The complaint states that Plaintiff is a residential tenant and states no facts showing that Plaintiff vacated the premises or relinquished possession of the premises such that the lease expired on September 24, 2020. (Compl. ¶¶ 1, 10.) Nevertheless, Plaintiff argues that per CCP § 1945.5, the lease was voided. The court disagrees. Plaintiff provides no legal basis for this contention, and section 1945.5 states the lease shall be voidable by the party who did not prepare the lease unless such renewal or extension provision appears in the contract. Here, Paragraph 3 of the rental lease agreement clearly states a renewal provision for a month-to-month tenancy (Compl. Exh. 1 at p.1), consistent with the provision of section 1945. Therefore, the tenancy for years became a tenancy at sufferance after Plaintiff held possession when the lease expired on September 24, 2020.

As to Plaintiff’s second basis of declaratory relief -- whether Plaintiff owes rent for the period of March 1, 2020, to September 24, 2020 -- the Complaint fails to allege that Defendant is seeking those rent monies; therefore, there is no controversy. To the extent that Plaintiff does have a controversy, the second reason the first cause of action fails is because this court does not possess the power to rule on it as the issue has already been raised the pending UD 2 action. Therefore, the UD 2 court is the proper arbitrator of this controversy.

For the reasons set forth above, the Demurrer to the first cause of action is sustained.

“There is no freestanding cause of action for “restitution” in California. (Munoz v. MacMillan (2011) 195 Cal.App.4^th 648, 661.) “…restitution is a remedy and not a freestanding cause of action…” (Hamilton & High, LLC v. City of Palo Alto (2023) 89 Cal.App.5^th 528 fn. 14.) Because restitution is not a cause of action, the demurrer to the second cause of action is sustained.

C. Third Cause of Action – Violation of the City Moratorium & Fourth Cause of Action – Violation of County Moratorium

On March 4, 2020, the mayor for the City of Los Angeles, at the time Eric Garcetti, signed the City of Los Angeles Declaration of Local Emergency, which provided renter protections for tenants living within the City of Los Angeles. Among those protections was the restriction that tenants who provided their landlord with COVID-19 Related Declaration of Financial Distress Forms by the proper deadline could not be evicted for rent owed from March 1, 2020, through September 30, 2021. (See Los Angeles Housing Department’s COVID-19 Renter Protections at https://housing.lacity.org/highlights/renter-protections.) Whether Plaintiff was eligible for these protections depends on whether the proper forms were submitted. There is no mention of the forms in the complaint or that Plaintiff properly complied with procedures to obtain rent relief.

More importantly, whether Plaintiff is eligible for these protections is a factual determination to be made by the court in the UD 2 action.

Similarly, the Governor of California, Gavin Newsom, signed Assembly Bill No. 3088 on August 31, 2020. This bill placed a county-wide moratorium on evictions through January 1, 2021. (Assembly Bill No. 3088 1179.04(a).) The currently pending UD 2 action was filed on July 27, 2022, and is asking for rents from April 2022 through June 2022 only. Whether Plaintiff is subject to rent protections that prohibit this is again a factual determination not appropriate to be made on demurrer and a determination that must be made by the UD 2 court rather than this court.

Here, Plaintiff fails to show that the court has jurisdiction to adjudicate the issues raised in the third and fourth causes of action. “Under the rule of exclusive concurrent jurisdiction, ‘when two superior courts have concurrent jurisdiction over the subject matter and all parties involved in litigation, the first to assume jurisdiction has exclusive and continuing jurisdiction over the subject matter and all parties involved until such time as all necessarily related matters have been resolved.’” (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 786–787 citing California Union Ins. Co. v. Trinity River Land Co. (1980) 105 Cal.App.3d 104, 109.) The Complaint fails to show that this action should not be abated because she cannot obtain the relief sought in the UD 2 action. “In determining whether the causes of action are the same for purposes of pleas in abatement, the rule is that such a plea may be maintained only where a judgment in the first action would be a complete bar to the second action. (Lord v. Garland (1946) 27 Cal.2d 840, 848.)

As the complaint fails to allege that Plaintiff cannot obtain relief for the claims raised in her third and fourth causes of action in the UD 2 action, the demurrers to the third and fourth causes of action are sustained.

Although Plaintiff’s fifth cause of action for retaliation does not specify whether it is being brought under statutory or common law, neither theory survives Defendant’s demurrer. A statutory claim would only survive under CCP § 1942.5 if the tenant was not in default. Here, it appears that Plaintiff is in default because of the pending UD 2 action. The cause of action also does not survive under common law because the tenant would have had to vacate the premises. (See Banuelos v. LA Investment, LLC (2013) 219 Cal.App.4^th 323, 328.) Plaintiff is still living at the premises. Moreover, Plaintiff fails to make clear under which theory they are bringing their retaliation claim and neither theory is viable as currently pled in the complaint.

On the court’s own motion, Plaintiff’s First Amended Complaint is stricken. The court grants Plaintiff thirty (30) days leave to amend the Complaint. Defendant is to provide notice.

[1] “Before filing a demurrer…the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (CCP § 430.41.)¿ Although on June 8, 2023, Plaintiff responded to Defendant’s email by stating that she was open to a meet and confer, Plaintiff failed to respond to Defendant’s subsequent response. (Troung Supp. Decl. ¶ 4, Ex. 1.) The Truong Declaration is insufficient for purposes of CCP §§ 430.41 and 435.5, as it clearly states the parties have failed to meet and confer before this hearing before the court. However, as failure to meet and confer does not constitute grounds for overruling a demurrer, the court continues with the merits of the parties’ arguments.